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Examining the employer’s ability to monitor an employee’s use of the Internet and/or email communication and social media on company owned equipment is a significant concern for all employees.

There is no question that when it comes to social media, once an employee posts something in the public sphere, it significantly diminishes their expectation of privacy relating to that information. As such, it is commonplace that employers are permitted to access and examine this information, if it is done on company time or on a company device.

Employers may discipline employees for excessive use of company phones or computers even if the employee has not accessed inappropriate content.

In the case of Fairmont Royal York Hotel and U.N.I.T.E. H.E.R.E., Local 75 (Gonzales) (Re), an 18-year employee was dismissed after the employer discovered he had accessed the Internet during work hours for non-work related purposes for extended periods of time. The arbitrator made the following comments:

Spending extended periods of time on a computer accessing the Internet when one is supposed to be working is very serious misconduct.

She goes on to reiterate that the agreement between employer and employee governing the working relationship entails the notion that the employee will perform work, and violating that, justifies discipline.

In Fairmont, the arbitrator reinstated the grievor without compensation due to a number of mitigating factors, such as long service, a clean record, remorse etc. The employer must establish that the conduct actually harmed the employer’s interests.

Generally, the cases suggest that police employers can review workplace email accounts and Internet usage to prevent excessive personal use or access to inappropriate content. However, prior to conducting these searches, employers should develop and implement a policy that clearly states that workplace computers and phones will be monitored to prevent inappropriate use. Although these do not appear to be required in order for employers to discipline, having a policy in place strengthens the basis for monitoring and discipline in general.

There does not appear to be any authority that prohibits employers from, as practice, searching the contents of employee emails or computer files, however, there are some cases that suggest employees may have a privacy interest in their workplace computers and phones. (Lethbridge College). It should also be noted that this privacy interest is slight and can be diminished by an employer’s operational realities of the workplace (R v. Cole SCC).

Generally speaking, searches should be conducted when the employer has reasonable cause to do so.

R v Cole (Supreme Court):

Facts: A high school teacher was permitted to use his work-issued computer laptop for personal purposes, but a policy issued by the school board stated that “all data and messages generated on or handled by board equipment are considered to be the property of the school board”. This laptop was seized after a technician found partially nude photos of a female student. The photos were copied onto CD’s that were given to the police. These were viewed without a warrant, and the teacher was charged.

In determining whether his s. 8 rights were violated, the Court began by outlining that these rights are only engaged when the person has a reasonable expectation of privacy in the object or subject matter. To determine this, we look at:

The subject matter of the search

Whether the claimant had a direct interest in the subject matter

Whether the claimant had a subjective expectation of privacy in the subject matter and

Whether the subjective expectation of privacy was objectively reasonably

The Court then states the more personal and confidential the information is, the more they will recognize a constitutionally protected privacy interest. Information found on computers is very personal.

The school board’s ownership of the computer was important, but not determinative.

HELD: the teacher did have a reasonable expectation of privacy in the contents of his workplace computer. The ownership of the laptop by the employer and the policies in place to govern its use diminished this right however.

This case goes further than arbitral decisions in protecting an employee’s privacy interests. Arbitrators have recognized that there may be situations where an employee does not have a reasonable expectation of privacy in their workplace computer.

The decision in Cole did not explicitly deal with the employer’s right to monitor computers issued to employees.

CONCLUSION:

There is no clear answer in relation to this, however, cases suggest that:

1. Employers are permitted to monitor the use of their own equipment, however, they should have reasonable cause to do so

2. Employers will have to keep in mind the nature of the alleged misconduct, the presence or absence of workplace policies, and the other considerations, which generally affect the appropriate nature of discipline.

3. Workplace policies should be carefully drafted and implemented.

4. Depending on the nature of the employer’s discipline, there may be a grievance to be filed in relation to the severity of such punishment.

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Labour & Employment

Proficient in leading and conducting full contract negotiations for both Uniform and Civilian members. Carriage of rights grievances, participating in Conciliation, Mediation and Arbitration. Advocating before the Police Services Board regarding the termination of Civilian members and Probationary Constables.

Through research and attendance at several educational workshops and conferences, we remain up to date on the coordinated bargaining strategies developed by the OACP and the OAPSB, developments in labour and employment law generally, as well as precedent-setting case law involving pertinent and relevant legal issues.

Familiar with Board Governance and the Business Corporations Act of Ontario, as well as the Canada Business Corporations Act. Providing legal positions on a variety of issues pertaining to Board Governance, Grievances and Collective Bargaining to several Associations across the Province, examining specific provisions of their Civilian and Uniform Working Agreements, including the merits of a grievance and the appropriate interpretation of said provisions as they apply to the membership at large.

Police Services Act

From providing initial consultation to Association Executives regarding the likelihood of informal resolution, formal charges and the outcome at a formal PSA disciplinary hearing, to conducting full hearings as defence counsel on behalf of respondent officers. Including submissions for sentencing, as well as attendance at the OCPC for appeals of PSA decisions. Conducting over one hundred OIPRD and SIU interviews with respondent and witness officers, and acting as defence counsel in OIPRD directed hearings.

We have the experience and skills required to conduct full hearings and appeals, address the Police Services Board where necessary, make application for Judicial Review, and provide representation at OIPRD and SIU interviews. The scope of our work and capabilities is a valuable resource, as the immediate consultation and legal assessment of any potential disciplinary matter will better equip Association Executives to ensure they are providing appropriate representation where it is required, as well as having all of the necessary information to present to the Board on these matters. This ensures prompt and adequate decision-making decreasing the chances of liability being incurred.

In a system where change is necessary, we will provide assertive and effective advocacy to preserve the rights of our clients.

Representing police officers criminally charged on several occasions. In addition to defending these same police officers at their police disciplinary hearings. In consideration of the overlap between these two types of proceedings, it becomes extremely beneficial to have the same representation. Police services consistently attempt to leverage one proceeding against the other with the ‘duties’ of police officers under the PSA, therefore, as applied to Police Associations, possessing knowledge of the criminal law is a pertinent and valuable asset.

Police discipline issues are fraught with parallels to the criminal law, regardless of whether hearing officers have accepted the notion or not. Having counsel who is skilled within this area serves as a benefit to the officers, and most certainly to the Association who has a duty to represent them. Utilizing this knowledge to demand and justify changes within the disciplinary processes of policing issues, we have been successful in achieving positive outcomes for our clients.

Familiar with the Partner Assault Response Services in relation to domestic charges and representing numerous clients on domestic-related charges, both at trial and for resolution. We have represented clients on a wide variety of criminal offences such as impaired, over .80 offences, prostitution charges, attempted murder, break and enter, theft, fraud, criminal harassment, arson, voyeurism, etc.

Special Investigations Unit

Attended well over 100 SIU interviews, both for witness officers, as well as respondent officers. Challenging the SIU on their mandate within these interviews, when/if attempts to operate outside of their authority are made, is vital to ensure true oversight.

Providing aggressive advocacy for members and Police Associations, as it pertains to submitting to interviews, both for officers as well as for Association representatives. Emphasizing the importance of protecting the privilege associated with the Executive role, and providing the legal knowledge necessary to defend the decision not to submit to an interview.

In an age of continually expanding oversight, knowledge of the law, and a passion for ensuring it is adhered to, is essential to ensuring the adequate protection of police officers.

Civil Litigation

​Competent and proficient in the drafting of pleadings in relation to the Small Claims Court, as well as the Ontario Superior Court of Justice. Familiar with the Rules of the Small Claims Court, as well as the Ontario Court of Justice Act, and their application in the representation of both Plaintiffs and Defendants. Conversant in pre-trial procedures including interlocutory hearings, and post-trial procedures such as costs submissions and the enforcement of judgments.

Representing both Plaintiffs as well as Defendants, within various jurisdictions across the Province, ranging from actions in the recovery of debts, slander, and breach of contract. Other claims have ranged from defending breaches of buyer representation agreements (real estate), negligence (tort), nuisance (tort), and the quality of professional services rendered (contract) etc.

Advocating for Police members in the defence of civil suits relating to business, personal and employment matters, we will work to ensure and encourage assertive and insistent communication between parties. This has contributed to our success rate in achieving resolutions outside of litigation, reducing costs for clients and the need for unnecessary court resources.

Human Rights Law

We are qualified in, and conversant with the Ontario Human Rights Code as well as the practices and procedures utilized at the Ontario Human Rights Commission. Experienced in the application of legal principles and advocacy before the Human Rights Tribunal, through mediation and pre-hearing preparation meetings.

Through insistent advocacy and the analytical assessment of several human rights applications, Pamela has attained modifications to command directives and policies and procedures to ensure employers are adhering to the collective agreement, as well as the Ontario Human Rights Code. This has resulted in positive results for individual applicants as well as the entire membership for Associations.

Being skilled and proficient in this area is beneficial within the context of the PSA. Disciplinary Tribunals have a duty to accommodate respondent officers who are suffering from disabilities, which may prevent them from attending their hearings. Through her knowledge of human rights law, her experience in labour and employment, and her legal analysis of the mandate afforded to decision makers pursuant to the PSA, Pamela will advocate ensuring the appropriate accommodation of respondent officers by the Tribunal.

Estates

Offering services in the drafting of Last Wills, Powers of Attorney and Advanced Care Directives, Machado Law will assist you with the provision of all of your estate matters. We are also able to advise clients on the recent decision of Carter vs. Canada (Supreme Court of Canada. 2015-02-06, [2015] 1 SCR 331) regarding advanced care directives and the current state of the law as it pertains to assisted suicide.